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Dalton v. Commonwealth

Court of Appeals of Virginia

March 31, 2015

DARIUS ONEIL DALTON
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RADFORD. Josiah T. Showalter, Jr., Judge.

Affirmed.

Terry N. Grimes (Terry N. Grimes, Esq., P.C., on briefs), for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Huff, Judges Petty and McCullough.

OPINION

Page 699

[64 Va.App. 515] GLEN A. HUFF, CHIEF JUDGE

Following a jury trial in the Circuit Court of the City of Radford (" trial court" ), Darius Oneil Dalton (" appellant" ) was convicted of distribution of cocaine, in violation of Code § 18.2-248(C), and sentenced to five years' incarceration. On appeal, appellant presents the following assignments of error:

Page 700

1. The trial court abused its discretion by admitting certain text messages as each contained inadmissible hearsay and was admitted without proper foundation and authentication.
2. The trial court abused its discretion by permitting Paul Warren to testify as to the contents of a text message, not produced in discovery, and without accounting for its absence in violation of the best evidence rule.
3. The trial court erred by failing to grant [appellant's] motion to strike and set aside the verdict as the evidence was insufficient to support a finding beyond a reasonable doubt that [appellant] distributed cocaine.

For the following reasons, this Court affirms the rulings of the trial court.

I. BACKGROUND

On appeal, " 'we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.'" Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) ( en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.

On October 24, 2011, Radford City police officers executed a search warrant at a house where Paul Warren (" Warren" ) was living with three roommates. The search commenced after Warren accepted a package of marijuana sent through the mail. After the search, Detectives Eric Martin (" Martin" ) and Jimmy Smith (" Smith" ) asked Warren whether he would be willing to work as a " confidential informant" in exchange for [64 Va.App. 516] " consideration" of his charges.[1] Warren agreed to do so and provided the officers with the name of a man he knew only as " Streetz."

Warren testified that " [Streetz] used to live behind [his] house" while Warren was a student at Radford. Warren testified that he met Streetz " face-to-face" " about 100 times." Additionally, Warren testified that he had communicated with Streetz via phone calls and text messages " hundreds" of times. At appellant's trial, Warren identified appellant as the man he knew as " Streetz."

Warren additionally testified that, as a confidential informant and pursuant to the direction of the officers, he texted appellant to ask if he could " get a G," [2] to which appellant responded, " [y]eah." Appellant objected to this testimony, arguing that " [w]e need the text" because Warren's testimony was " not the best evidence." The trial court overruled this objection. On cross-examination, Warren testified that he could not produce these text messages because he no longer had that phone.

Appellant agreed to sell Warren one gram of cocaine for $55. Consequently, Martin and Smith searched Warren and his vehicle to ensure he had no existing cocaine about his person, gave Warren $55 in cash to make the purchase from appellant, and equipped Warren with audio equipment to record the buy. Warren then drove to Apartment L at 1205 Clement Street, which he identified as Streetz's apartment and testified that he had been to it roughly " [f]ifty" times. Martin and Smith followed appellant in an unmarked police vehicle while listening to the live audio feed.

After Warren arrived, appellant's roommate, Jaleesa Coverdale (" Coverdale" ), opened the door and let Warren inside. Warren walked into the kitchen where appellant was weighing out one gram of cocaine. As appellant was doing so, Warren [64 Va.App. 517] told appellant that he had just " aced" an exam in his " ECON 106" class. Appellant responded by informing Warren that he took the same class when he was at Radford and asked whether the same professor was still teaching it.[3] Additionally, the two men discussed a NASCAR race that was taking place that weekend in Martinsville, VA, appellant's plans to go home for the weekend, and the

Page 701

possibility of future drug transactions. Finally, as he was leaving the apartment, Warren said goodbye to ...


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